S v Shaik and Others (CCT 86/07) [2008] ZACC 7; 2008 (5) SA 354 (CC) ; 2008 (2) SACR 165 (CC) ; 2008 (8) BCLR 834 (CC) (29 May 2008)

S v Shaik and Others (CCT 86/07) [2008] ZACC 7; 2008 (5) SA 354 (CC) ; 2008 (2) SACR 165 (CC) ; 2008 (8) BCLR 834 (CC) (29 May 2008)

The Constitutional Court held that both the shareholding and dividends received by the appellants were proceeds of crime under the Prevention of Organised Crime Act, as they resulted directly from corrupt payments made to Mr Zuma to influence his conduct for the benefit of Mr Shaik and his companies. The Court found that the intervention of Mr Zuma was causally linked to the acquisition of the shareholding and dividends, and that the appellants did not have enforceable contractual rights to the shareholding absent Mr Zuma's intervention. The Act's definition of proceeds is broad and includes both the shareholding and dividends, regardless of how the shares were financed or the loan...

Citation
[2008] ZACC 7
Parties
Appellant: Schabir Shaik; Appellant: Nkobi Holdings (Pty) Ltd; Appellant: Nkobi Investments (Pty) Ltd; Respondent: The State
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
29 May 2008
Case Number
CCT 86/07
Procedural Posture
Criminal Appeal / Appeal From Supreme Court of Appeal; Constitutional Court Judgment
Outcome
Appeal dismissed.
Judges
O'Regan, Langa, Jafta, Kroon, Madala, Mokgoro, Nkabinde, Skweyiya, Van der Westhuizen, Yacoob
Legal Topics
Corruption, Proceeds of Crime, Confiscation Order, Prevention of Organised Crime Act, Joint and Several Liability, Constitutional Purposes
Criminal Law Civil Procedure Commercial and Corporate Corruption Proceeds of Crime Confiscation Order Prevention of Organised Crime Act Joint and Several Liability +1 more

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Parties

Schabir Shaik

Appellant

Nkobi Holdings (Pty) Ltd

Appellant

Nkobi Investments (Pty) Ltd

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From Supreme Court of Appeal; Constitutional Court Judgment

Legal Issues

  1. 1 Whether the shareholding and dividends received by the appellants constitute proceeds of crime under the Prevention of Organised Crime Act.
  2. 2 Whether the confiscation order should include both the value of the shareholding and the dividends, or only the net proceeds.
  3. 3 Whether the High Court's exercise of discretion in determining the amount of the confiscation order was appropriate and judicial.

Ratio Decidendi

The Constitutional Court held that both the shareholding and dividends received by the appellants were proceeds of crime under the Prevention of Organised Crime Act, as they resulted directly from corrupt payments made to Mr Zuma to influence his conduct for the benefit of Mr Shaik and his companies. The Court found that the intervention of Mr Zuma was causally linked to the acquisition of the shareholding and dividends, and that the appellants did not have enforceable contractual rights to the shareholding absent Mr Zuma's intervention. The Act's definition of proceeds is broad and includes both the shareholding and dividends, regardless of how the shares were financed or the loan...

Court Disposition

Appeal dismissed.

Orders

  • The appeal fails.
  • No order as to costs.